Alan Shatter successful in Court of Appeal case on critical Guerin report



The Court of Appeal has ruled that the Guerin Report into the handling of allegations of Garda misconduct contained conclusions that that were damaging to the former Minister for Justice and Equality, Mr Alan Shatter, and that the defective procedure adopted in publishing the report amounted to a breach of Mr Shatter’s constitutional rights.

Overturning the finding of the High Court that declared that Mr Shatter was not entitled to judicial review of the damaging report, the three-judge Court of Appeal was unanimous in finding that Mr Shatter’s constitutional rights were in jeopardy, but that this did not equate to a personal criticism of the author of the report, Mr Sean Guerin, who was subject to severe time constraints in delivering the report.

Background

In February 2014, the Government announced its decision to hold a review into the allegations made by Garda Whistle-blower, Sergeant Maurice McCabe, and related matters.

Mr Sean Guerin, a well-known and respected Senior Counsel experienced in criminal law, agreed to review and examine the handling of the complaints by the Garda authorities and other public bodies including the Department of Justice and Equality.

Among the tasks to be considered was whether there was a sufficient basis for concern as to whether the Gardaí or any other public body had taken all appropriate steps to investigate the Sergeant’s complaints.

The focus of the review extended to the Minister for Justice and Equality and his Department in respect of the adequacy of any investigation or inquiry instigated by them into the McCabe allegations. Mr Guerin had to consider if there was a sufficient basis for concern as to whether the Minister or the Department had taken all appropriate steps; and if he considered that a Commission of Investigation was required, he was to say what matters should be investigated

Mr Guerin submitted his Report to the Taoiseach on 6th May 2014, noting that the Taoiseach had stated publicly his intention to lay the report before the Dail.

The Taoiseach furnished a copy of the report to Mr Shatter on the following morning, and in a conversation between the two men later, he said that in light of the report’s contents he would have difficulty in expressing confidence in Mr Shatter, if asked. Consequently, Mr Shatter resigned from the Government on 7th May 2014, also relinquishing his other portfolio as Minister for Defence.

Following his resignation and the publication of the report, Mr Shatter argued that the report contained damaging findings and conclusions about him that Mr Guerin included without giving him any opportunity to rebut or make reply – Mr Shatter was however unsuccessful in his proceedings in the High Court seeking judicial review of the report of Mr Guerin.

Court of Appeal

According to Justice Ryan, the issues arising in consideration of the judgment of the High Court included vires, justiciability, fair procedures, whether Mr Shatter could mount this challenge to the report as a member of the Government that established the inquiry, and whether the proceedings constituted an illegitimate collateral attack on the Commission of Investigation that was established following the report.

Justice Ryan was concerned that there was an absence of direct applicable authority as to whether the exercise carried out by Mr Guerin was susceptible to judicial review by the courts.

Justice Ryan proposed to address the issues arising in the case in the following order:

  1. Did the statements in Mr Guerin’s report damage Mr Shatter’s good name as Minister for Justice and Equality?
  2. Were the statements ultra vires the powers of the respondent under the terms of reference?
  3. Did the nature of the brief given to Mr Guerin in the terms of reference mean that the rules of fair procedures and/or natural justice did not apply?
  4. Did the Minister:

  1. Actually have the opportunity or facility through the Department of Justice and Equality contact person Mr Clarke or otherwise to put material before Mr Guerin for his consideration?
  2. If so, did the applicant Mr Shatter fail to assist the respondent Mr Guerin by furnishing explanations and responses which he knew or ought to have known were required in the circumstances?
  3. If so, did those circumstances or any of them militate against the claim of fair procedures and/or the applicant’s entitlement to judicial review?

  1. Is Mr Shatter debarred from relief:

  1. Because he was a Minister in the Government that commissioned the review and report?
  2. Because his proceedings constitute a collateral attack on the Commission of Investigation? Are the proceedings actually a collateral attack? If so, do they bar relief?
  3. Because he made a claim of bias against Mr Guerin notwithstanding that he later withdrew it?
  4. In the exercise of the Court’s discretion?

After dealing with each question in turn, Justice Ryan stated that “whatever legitimate criticism may be levelled at Mr Shatter for jumping to unfair and unjust conclusions, a court should be very reluctant to withhold the protection of human rights as guaranteed by common law and the Constitution because the person was too ready to jump to an unfair conclusion in order to explain how or why another person is alleged to have committed a wrong…Law and justice and protection of human rights do not exist only for those who are moderate, careful and reasonable”

In summing up, Justice Ryan cited John v. Rees 2 WLR 1294, and concluded that Mr Shatter had established that he was a person whose constitutional rights were in jeopardy by reason of the conclusions that Mr Guerin was proposing to include in his report, that the author was obliged to observe the rules of natural justice and in particular audi alteram partem, that there was in the circumstances breach of those rights because of the defective procedure that was adopted.

Allowing Mr Shatter’s appeal, Justice Ryan stated that he was “in entire agreement with the trial judge… as to the pressure under which Mr Guerin was working in dealing with such a large amount of documentary material under severe time constraint”. Therefore while Mr Guerin was in error; in the overall context of what he had to do Justice Ryan thought it prudent to emphasise that he was “very far from being personally critical”.

Ms Justice Finlay Geoghegan and Ms Justice Irvine concurred with President Ryan’s findings in their separate written judgments.

  • by Seosamh Gráinséir for Irish Legal News